Bhagwat Ram Sahu vs Jagdish Prasad Nirmalkar and Others

N.K. Agrawal, J.—This petition is directed against the orders dated 24.4.2008 (Annexure P/1) and 21.08.08 (Annexure P/2), passed in civil suit No. 33A/07 by IInd Additional District Judge, Bilaspur, whereby the applications under order 1 Rule 10 of CPC and Order 1 Rule 10 (3) read with section 151 of CPC, filed by one Jagdish Prasad Nirmalkar respondent No. 1 herein were allowed, and vide first order dated 24.04.2008 the respondent No. 1 was directed to be imp leaded as defendant and vide second order dated 21.08.2008, the respondent No. 1 was directed to transposed as co plaintiff.

The brief facts of the case are that, the petitioner filed a suit for specific performance of contract for sale of property which is part of Khasra No. 505/01, Area 2 Decimal, situated at Village Ameri, District Bilaspur against the respondent No. 2 & 3, which is pending consideration During pendency of the suit, the respondent No. 2 & 3 which is prior in time. The trial court, vide order dated 24.04.08, allowed the application of the respondent No. 1 on the ground that the respondent No. 1 is a necessary party to enable the court to decide the lis effectually and completely and to settle all the questions involved in the suit.

Again the respondent No. 1 preferred an application under order 1 Rule 10 (3) read with Section 151 of CPC for transposition of respondent No. 1 as plaintiff No. 2. The same was also allowed by the trail court holding that it would help to resolve all the issues and controversy involved in the suit.

Shri Ansari, learned senior counsel appearing for the petitioner would submit that the impugned orders passed by the trial court are wholly without jurisdiction and illegal. For this, he placed his reliance upon the judgment of Supreme Court in cases of Kasturi Vs. Iyyamperumal and Other, 2005 STPL (LE) 34903 SC.

Per contra. Shri R.K. Tiwari, counsel for respondent No. l and Shri suresh pandey, counsel for respondent No. 3 supported the orders and submitted that the orders passed by trial couerts are well reasoned orders and does not call for any interference. For this, they placed reliance upon the decisions passed by the supreme court in the matters of Sneh Gupta Vs. Devi Sarup & others, 2009 (2) Supeme 77, Byoyo Kumar Pattanaik Vs. Basanta Kumar Patnaik and Others, AIR 2000 SC 3587 , Dwarka Prasad Singh and Others Vs. Harikant Prasad Singh and Others, , Kiran Tandon Vs. Allahabad Development Authority and Another, and R.S. Madanappa and Others Vs. Chandramma and Another, .

The question for decision making in this case is whether any suit for specific performance of contract for sale of property instituted by purchaser against the vender, a stranger or a third party to the contract claiming to have an independent title and possession over the contracted property, is entitled to be added as a party defendant in the said suit, and also, whether such party can be transposed as plaintiff in the suit. The relevant provision in this regard is order 1 rule 10 of CPC, which reads as under:

Rule 10 (1) whether a suit has been instituted in the name of the wrong person as plaintiff or where it is doubtful whether it has been instituted in the name of the right plaintiff, the court may at any stage of the suit, if satisfied that the suit has been instituted through a bona fide mistake, and that it is necessary for the determination of the feal matter in the dispute so to do, order any person to be substituted or added as plaintiff upon such terms as the court thinks just.

(2) The court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out and that the name of any person who ought to have been joined, whether as plaintiff defendant or whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added.

(3)

(4)

(5)

(Omitted since not necessary).

A bare reading of this provision would reveal that the necessary parties in a suit for specific performance of contract for sale are the parties to the contract or if they are dead their legal representatives as also a subsequent purchaser of the suit property. A purchaser is a necessary party as he would be affected if he had purchased with notice of the contract, but a person who claims to be a party to another contract for sale with the same vender is however, not a necessary party.

The supreme court in the matter of Kasturi (supra) laid down two tests to be satisfied for determining the question who is a necessary party, firstly, there must be right to some relief against such party in respect of controversies involved in the proceedings. Secondly, no effective decree can be passed in the absence of such party. The supreme court further held as under:

That apart, from a plain reading of the expression used in sub rule (2), Order 1, Rule 10 of the CPC" all the questions involved in the suit" it is abundantly clear that the legislature clearly meant that the controversies raised as between the parties to the litigation must be gone into only, that is to say, controversies with regard to the right which is set up and the relief claimed on one side and denied on the other and not the controversies which may arise between the plaintiff appellant and the defendants inter se or questions between the parties to the suit and a third party. In our view, therefore, the court cannot allow adjudication of collateral matters soi as to convert a suit for specific performance of contract for sale into a complicated suit for title between the plaintiff/ appellant on one hand and respondent Nos. 2 & 3 and respondent Nos. 1 and 4 to 11 on the other. This addition, if allowed, would lead to a complicated litigation by which the trail and decision of serious questions which are totally outside the scope of the suit would have to be gone into. As the decree of a suit for specific performance of the contract for sale, if passed, cannot, at all, affect the right, title and interest of the respondent Nos. 1 and 4 to 11 in respect of the contracted property and in view of the detailed discussion made herein earlier, the respondent Nos. 1 and 4 to 11 would, not, at all, be necessary to be added in the instance suit for specific performance of contract for sale.

That apart, there is another principle which cannot also be forgotten. The appellant, who has filed the instant suit for specific performance of the contract for sale is dominus litus and cannot be forced to add parties against whom he does not want to fight unless it is a compulsion of the rule of law, as already discussed above. For the reasons aforesaid, we are therefore of the view that respondent Nos. 1 and 4 to 11 are neither necessary parties nor proper parties and therefore they are not entitled to be added as party defendants in the pending suit for specific performance of the contract for sale.

18.........In our view, the third party to the agreement for sale without challenging the title of the respondent No. 3, even assuming they are in possession of the contracted property, cannot protect their possession without filing a separate suit for title and possession against the vendor. It is well settled that in a suit for specific performance of a contract for sale the lis between the appellant and the respondent Nos. 2 & 3 shall only be gone into and it also not open to the court to decide whether the respondent Nos. 1 and 4 to 11 have acquired any title and possession of the contracted property as that would not be germane for decision in the suit for specific performance of the contract for sale, that is to say in a suit for specific performance of the contract for sale the controversy to be decided raised by the appellant against respondent Nos. 2 & 3 can only be adjudicated upon, and in such a lis the court cannot decide the question of title and possession of the respondent Nos. 1 and 4 to 11 relating to the contracted property.

Thus, it is clear that the dicta of the judgments of Supreme Court, as referred hereinabove, clearly support the stand taken by the petitioner.

It is a well-settled law that by entering into contract for sale of property, a party does not get any legal right over the property, and remedy is to institute a suit for specific performance of a contract for sale in accordance with law In a suit for specific performance of contract for sale of property filed by the petitioner, the respondent No. 1 who is stranger to the contract and claims to be entered into contract for sale of property with the respondent No. 2 & 3 separately and prior in time, is always at a liberty to institute a suit for specific performance of contract for sale of property against the respondent No. 2 & 3. But he is neither a necessary party nor property in suit filed by the petitioner. Moreover, transposition of his name as plaintiff No. 2 is wholly without jurisdiction for two reasons, firstly, as per their own case their interest is adverse to the petitioner and secondly, transposition of respondent No. 1 as plaintiff would mean two plaintiffs claiming interest over the suit property which is adverse to each other.

In case of Sneh Gupta (Supra) the appellants Sneh Gupta was one of the legal heirs, entitled to a share in the property. In case of Bijoyo Kumar (Supra) in a partition suit, plaintiff No. 1 instead of seeking return of plaint for presentation before proper court seeking transposition of plaintiffs 2-5 as defendant before Munsiff Court, which was allowed by the Supreme Court. In case of Dwarka Prasad Singh (Supra), the Supreme Court held that in a suit for specific performance against a purchaser with notice of a prior agreement of sale vender is a necessary party.

In case of Kiran Tandon (Supra), the Supreme Court in para 4 held as under:

....On such terms as may appear to the court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined. Whether as plaintiff defendant or whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added. It is well settled that the court has power under sub rule (2) Order 1, Rule 10, CPC to transfer a defendant to the category of plaintiffs and where the plaintiff agrees, such transposition should be readily made

Thus, a careful reading of the dicta of the judgments of Supreme Court, referred hereinabove, and relied on by the respondents, are not helpful to the respondents in the facts and circumstance of the case on hand.

For the reasons mentioned herein above, I have no hesitation to hold that the impugned orders dated 24.04.2008 and 21.08.08, passed in civil suit o. 33A/07, are wholly without jurisdiction, and liable to be set aside and is accordingly set aside and the application for addition of parties filed at the instance of respondent No. 1 and also the application for transposition of respondent No. l as plaintiff No. 2 filed by the respondent No. 1 stand rejected and petition is accordingly allowed.

However, it is made clear that the respondent No. 1 is free to avail his remedy under the provisions of law against the respondent No. 2 & 3, if so advised. No order as to costs.